Leavitt v. Leavitt

229 Mass. 196 | Mass. | 1918

Braley, J.

The exceptions state, that the “court made no finding upon the charges of adultery, it being understood that the only issue passed on was that of connivance,” and having found that connivance had been proved the presiding judge ordered the libel dismissed. The evidence is reported; but we cannot reverse his findings of fact. Morrison v. Morrison, 136 Mass. 310. The question accordingly is whether the evidence warranted the finding.

It is not contended that express connivance had been shown; but this is not necessary. It may be established by conduct which not only causes the adulterous act, but shows consent thereto actively or passively of the libellant. Robbins v. Robbins, 140 Mass. 528, 531. The right to a divorce is barred because, the marital wrong complained of having been consented to, no injury has been suffered. Pierce v. Pierce, 3 Pick. 299. Wilson v. Wilson, 154 Mass. 194. Noyes v. Noyes, 194 Mass. 20. Ross v. Ross, L. R. 1 P. & D. 734.

The only evidence introduced was that of the libellant. It unquestionably shows undue and censurable familiarity between the libellee and the co-respondent at the matrimonial home, with an arrangement between them for a meeting the next day in a neighboring city, where an opportunity would be afforded for the act charged in the libel. But, even if as further appears the libellant was fully informed as to his wife’s adulterous disposition, and did not remonstrate or warn her of her peril and of the consequences which might follow, because he hoped she might go far enough to enable him to obtain a divorce, his conduct did not amount to connivance. Wilson v. Wilson, 154 Mass. 194. The libellant however also testified, that on the morning of the day of the appointment, the libellee said that she was going to the city and asked for money with which to purchase a dress. But, being unable to advance the amount required, he gave her a less sum to buy a skirt. The journey was made, and, although a skirt was purchased at a price leaving an appreciable balance of the money given to her, the evidence, if believed, showed the act charged in the libel to have been committed. The real, not the ostensible purpose of the libellant in advancing the money was a question of fact, and the judge under the circumstances was justified in finding, “that in giving her money for the purchase of the skirt he intended to aid her in carrying out her purpose to go . . . upon her adulterous enterprise.”

The intent and willingness of mind of the libellant to have his wife transgress having been found, the ruling that as matter of law the libel could not be maintained was correct. Cairns v. Cairns, 109 Mass. 408. Morrison v. Morrison, 136 Mass. 310.

Exceptions overruled.